On October 31, 2013, the Alberta Court of Queen’s Bench released the sentencing decision in R. v. XI Technologies Inc., 2013 ABQB 651. A summary of the Alberta Court of Appeal’s decision affirming the employer’s convictions under Alberta’s Occupational Health and Safety Act can be found here.

The Court of Queen’s Bench sentenced the employer to a fine of $275,000, inclusive of the victim fine surcharge. The Crown had proposed a fine of $400,000 inclusive of the victim fine surcharge. The employer’s counsel argued that figure was too high without specifying a range of what would be appropriate.

The Court considered a number of aggravating factors, including: the Legislature’s increase to the maximum fines for a first offence under the Occupational Health and Safety Act from $150,000 to $500,000; the goal of deterrence; and the fact that the accident had resulted in a fatality. The Court also considered a number of mitigating factors such as: the work environment was not the usual workplace and the activities the employee was performing were unique; the employer was not operating the machine to make a profit; the risk of death was not probable; the employer had taken sincere, albeit inadequate steps to ensure safety and so, although the employer was negligent, it was not knowingly non-compliant with safety standards or recklessly indifferent towards employee safety; the employer was genuinely remorseful; the employer did not have a prior record; and the employer had made a donation to fund a memorial bursary.

This decision confirms that Alberta courts will continue to impose significant fines for breaches of the OH&S legislation, particularly where those breaches result in a fatality. It also highlights that employers must remain vigilant to safety issues in unexpected circumstances where employees are operating outside of their core work functions and that the employer’s ultimate responsibility for safety cannot be delegated to employees or third parties. Finally, this case provides that while employer donations will be considered as a mitigating factor in sentencing, they will not be credited dollar-for-dollar.

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